Total Articles: 30

On May 11, 2018, the Rhode Island Department of Labor and Training finalized regulations concerning the state’s mandatory paid sick and safe time law,1 the Healthy and Safe Families and Workplaces Act (HSFWA). The regulations clarify some issues like business size and pay rate calculations and fill some gaps left by the enacting statutes. Yet the regulations fail to provide sufficient clarification on certain issues and interpret some more common provisions in a novel way that may leave employers scratching their heads.

Can two judges on the same court reach contradictory conclusions about the enforceability of the same arbitration agreement presented to two employees in the same manner? In Rhode Island, the answer is yes, as the U.S. District Court for the District of Rhode Island’s recent decisions in Conduragis v. Prospect CharterCARE, LLC and Britto v. St. Joseph Health Services of Rhode Island demonstrate. These decisions underscore the leeway that trial courts in Rhode Island have when ruling on the enforceability of arbitration agreements—and the resulting uncertainty that employers face when drafting such agreements.

The Secretary of the Puerto Rico Department of Labor and Human Resources (“PR DOL”) has issued a new regulation, effective October 18, 2017, to administer Puerto Rico’s Christmas Bonus Law, Act. No. 148 of June 30, 1969. The new regulation, which supersedes all prior regulations on the subject, includes guidance on implementation of the Christmas Bonus Law, as amended by the Labor Transformation and Flexibility Act, Act No. 4 of January 26, 2017 (“LTFA”).

Rhode Island has joined the growing list of states and municipalities that have enacted paid sick leave laws. Under the Healthy and Safe Families and Workplaces Act, signed by Governor Gina Raimondo, employers with at least 18 employees must provide their employees with paid sick leave. The new law goes into effect July 1, 2018.

On September 19, 2017, the Rhode Island General Assembly approved a bill that would require, with limited exception, all Rhode Island employers with 18 or more employees to provide their employees with paid sick time. The bill is in response to Governor Gina Raimondo’s call during her State of the State address in January for such legislation, and she has indicated she intends to sign the bill into law.

Last month, a Rhode Island trial court held that a hairdresser’s noncompetition agreement with the salon for which she had been working, which sold its assets to a successor salon, was not transferable to the successor business because the noncompetition agreement lacked an assignability clause.

In a recently issued trial court decision, Callaghan v. Darlington Fabrics Corp., a Rhode Island Superior Court justice held that an employer could not deny employment to an applicant licensed under state law to possess and consume medical marijuana solely because the applicant would be unable to pass a mandatory pre-employment drug test. The decision, which granted the applicant summary judgment against the employer, recognizes—for the first time in Rhode Island—a private right of action for medical marijuana “cardholders” to seek damages for discrimination on account of their status as medical marijuana patients by schools, landlords, and employers. Employers with Rhode Island operations may want to reevaluate their drug testing procedures going forward as a result of this decision.

In a case of first impression in the state, the Rhode Island Superior Court recently ruled an employer is prohibited from refusing to hire a prospective employee because the employee would potentially fail a pre-employment drug test due to the employee’s use of medical marijuana. In Callaghan v. Darlington Fabrics and the Moore Company, the court held the state’s Hawkins-Slater Medical Marijuana Act (the “Medical Marijuana Act”), which prohibits discrimination against medical marijuana users, also protects the cardholder’s actual use of marijuana. Even though using marijuana is still illegal under federal law, the court held that employers that refuse to hire card-carrying prospective employees due to their use of medical marijuana may be subject to liability under the Medical Marijuana Act.

Employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants, a Rhode Island state court has held under the state medical marijuana law. Callaghan v. Darlington Fabrics Corp., et al., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). The court granted summary judgment to the plaintiff-applicant.

One of an employer’s first steps in a suit against a former employee to enforce a restrictive covenant is to seek a preliminary injunction to prevent the employee from continuing to violate his or her contractual obligations. But Rhode Island’s healthcare employers may no longer have that option with respect to employees who provide patient care, as a result of Judge Michael A. Silverstein’s recent novel decision in Medicine and Long Term Care Associates, LLC v. Khurshid.

On June 25, 2015, the Rhode Island General Assembly passed and Governor Gina M. Raimondo signed legislation making it an unlawful employment practice under the state’s Fair Employment Practices Act for an employer to refuse to reasonably accommodate an employee’s or prospective employee’s condition “related to pregnancy, childbirth, or related medical conditions.” The new statute, G.L. § 28-5-7.4, expressly includes lactation or the need to express breast milk for a nursing child as a covered “related medical condition.” It also provides examples of reasonable accommodations, including frequent or longer breaks, time off to recover from childbirth, appropriate seating, less strenuous duties, break time with a private non-bathroom space for expressing breast milk, and a modified work schedule. Notably, an employer may not require an employee to take a leave of absence from work if another reasonable accommodation can be provided. An employer is not required to accommodate a covered employee if it can show that doing so would cause an undue hardship on the employer’s program, enterprise, or business—a determination that depends heavily upon the employer’s size and resources.

Rhode Island legislation has created new burdens for employers. The Ocean State joins a growing number of states requiring employers to reasonably accommodate a worker’s condition related to pregnancy, childbirth, or related medical condition.

On July 10, 2015, the Rhode Island General Assembly sent Governor Gina Raimondo a compromise measure (House Bill 5590/Senate Bill 351) that would allow Rhode Island employers—for the first time in the state’s history—to pay wages via electronic pay cards. The measure became law on July 15, 2015, without the governor’s signature. Although in the past Rhode Island did not have a law explicitly prohibiting the use of pay cards as a means of paying wages, the Rhode Island Department of Labor and Training had taken the position that such a method, without explicit statutory authorization, was not legal.

Rhode Island Governor Gina M. Raimondo has signed into law a bill that permits employers to pay employees by payroll card in addition to other currently available methods of wage payment. The new law provides clarity for both Rhode Island employees and employers regarding compliant payroll card practices. Public Law 2015-267 became effective upon the Governor's signature on July 15, 2015.

On June 22, 2015, Rhode Island Governor Gina Raimondo signed into law another increase to the state’s minimum wage. This marks the fourth straight year that Rhode Island has raised its minimum wage. Effective January 1, 2016, the minimum wage will be $9.60 per hour.

On May 7, 2015, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) and the Rhode Island Department of Labor and Training (RI-DLT) entered into a Memorandum of Understanding (MOU) in which they agreed to share information on independent contractor misclassification and coordinate law enforcement efforts in that area.

A graduate student has filed suit with the help of the Rhode Island chapter of the American Civil Liberties Union against a textile manufacturer that allegedly rescinded an offer for a paid internship because the student is a registered cardholder in the state’s medical marijuana program. Christine Callaghan, a graduate student at the University of Rhode Island pursuing a masters’ degree in textiles, alleges that in June 2014, all indications were that the Darlington Fabrics Corporation was going to offer her an internship. She then met with a Darlington Human Resources representative and disclosed that she suffered from severe migraines and used medical marijuana to treat her condition. Callaghan then showed the representative her state-issued medical marijuana card.

The social media privacy trend on which we have previously reported continues. Oklahoma, Louisiana, and Rhode Island became the latest states to restrict employers’ ability to check the social media profiles of their employees and applicants...

Rhode Island has recently enacted legislation intended to protect job applicants’ and employees’ social media accounts and information. The new law prohibits employers from requiring job applicants or employees to disclose their social media passwords or from requiring applicants or employees to access their accounts while in their employer’s presence. The law further prohibits an employer from requiring an applicant or employee to add anyone, including the employer, as a contact to the applicant’s or employee’s social media account so that the employer might have access to otherwise private social media content.

Gov. Lincoln D. Chafee recently signed the 2014 Student and Employee Social Media Privacy Acts into law. In a press release, lawmakers said that the new law was modeled on similar laws in California that are “considered one of the nation’s strongest social-media privacy laws in the nation.”

On July 3, 2014, Rhode Island Governor Lincoln Chafee signed into law a measure that will raise the state’s minimum wage to $9.00 per hour, effective January 1, 2015. The legislation, which will increase the state’s minimum wage for the third time in as many years, was approved by the Rhode Island General Assembly and sent to the governor just before the close of the legislative session last month. Altogether, 10 states and the District of Columbia have passed minimum wage increases during their legislative sessions this year.

The Rhode Island General Assembly is considering amending the state’s Fair Employment Practices Act (FEPA) to make it easier for employees to sue their employers for discrimination-based retaliation. Under FEPA, employees can sue their employers if they believe they were retaliated against for complaining of discrimination or for participating in the investigation of alleged discrimination. Retaliation can take a variety of forms, including termination, denial of a promotion, and a reduction in responsibilities or pay—referred to generally as an adverse employment action. FEPA is analogous to Title VII of the federal Civil Rights Act of 1964, which also prohibits retaliation. Because FEPA is patterned after this federal counterpart, courts have largely followed federal law when applying the state law.

The U.S. District Court for the District of Rhode Island recently considered the application of Title VII of the Civil Rights Act of 1964 and the Rhode Island Fair Employment Practices Act (FEPA) in the context of an alleged harasser and victim who are members of the same sex. The court determined that the worker’s claims failed because (1) Title VII does not protect against discrimination based on sexual orientation, (2) the worker failed to establish a claim for sexual harassment based on a hostile work environment, and (3) the worker could not establish a claim for retaliation.

On January 5, 2014, the Temporary Caregiver Insurance program became effective in Rhode Island. So why should employers in other states care? Well, what happens in Rhode Island may not stay in Rhode Island, and your state could be next.

Effective January 1, 2014, Rhode Island employers with four or more employees are prohibited from asking about a job applicant’s criminal background prior to the first interview, whether verbally or on a written application. The prohibition extends to arrests, criminal charges, and convictions.

The Rhode Island Superior Court recently issued a decision that clarifies the Sunday premium pay laws and regulations in Rhode Island. In affirming a Department of Labor and Training (DOLT) decision on appeal, a Superior Court judge declared DOLT regulations related to the vestigial Sunday work permit requirements a nullity. The judge further determined that the employer’s reliance on those regulations and associated guidance from DOLT did not provide the employer with a basis for relief from back pay and penalties assessed for failing to compensate employees in accordance with the Sunday premium pay laws.